NSW: Unmaintained fire dampers: Who is responsible?

Question: We’ve just discovered our dampers have not been checked for compliance for the past 8 years. We’re now up for $570,000 to repair the dampers. Shouldn’t this have been part of the annual fire inspection?

Our Annual Fire Safety Statement for the last 8 years has been completed by one approved service provider. Recently our air conditioning service providers advised the dampers were not being checked. Our strata manager said it was not listed on the foundation Fire Safety Schedule (from 1993) and therefore not subject to annual assessment.

We are now facing a charge of $570,000 to repair 190 dampers.

I believe the fire pathway should have been checked as part of the annual fire inspection.

Is this “negligence” and can it be claimed under our insurance policies for

• Tradesmen negligence; or
• Strata Committee negligence ; or
• Strata Manager negligence?

Answer: This is a very common issue cropping up due to the tightening of building compliance rules.

Pretty specific, but key observations are:

Maintenance of the dampers is wholly the owners responsibility and if they knew about the dampers, they should have been maintaining them as per clause 81 of the Environmental Planning & Assessment Act & Regulation (excerpt below):

81 Essential fire safety measures to be maintained

1. The owner of a building must maintain each essential fire safety measure for the building—
   
   1. for an essential fire safety measure specified in a fire safety schedule—to a standard no less than that specified in the schedule, or
   2. for an essential fire safety measure applicable to the building but not specified in the fire safety schedule (an original measure)—to a standard no less than that to which the measure was originally designed and implemented.

The above shows there’s no doubt that Dampers should have been maintained……. But…….. if no-one knew they existed &/or they were not listed on the schedule it’s pretty arguable if anyone is negligent or liable. If no-one was engaged by the owners to maintain them, it’s even less clear how one of the below could be considered negligent.

This is a very common issue cropping up due to the tightening of building compliance rules across NSW and Australia thanks to the Building Confidence Report.

Gaining legal advice on this would be the next step.

This post appears in Strata News #568.

Rob Broadhead
2020 Fire Protection
E: rob.broadhead@2020fire.com.au
P: 1300 340 210